The regime for international investment is extraordinary in public international law and controversial in many regions of the world. This article explores two aspects of this set of rules: its decentralization and the unusual powers it gives to private actors to invoke dispute settlement. Decentralization has contributed to a competitive environment for ratification of bilateral investment treaties (bit s) and has elevated the importance of dyadic bargaining power in the formation of the regime. Governments of developing countries are more likely to enter into bit s and tie their hands more tightly when they are in a weak bargaining position, which in turn is associated with economic downturns of the domestic economy. Once committed, investors have sued governments with surprising regularity, arguably contributing disproportionately to legal awards that favor the private corporate actors who have the power to convene the dispute settlement system. States have begun to push back, revising their obligations and attempting to annul arbitral awards. One of the conclusions is that it is important not only to consider whether bit s attract capital—which has been the focus of nearly all the empirical research on bit effects—but also to investigate the governance consequences of the international investment regime generally.

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/S0043887113000312

Bargaining over BITs, Arbitrating Awards: The Regime for Protection and Promotion of International Investment

States entering into investment treaties establish dual roles for themselves as
treaty parties (with an interest in interpretation) and actual or potential respondents
in investor-state disputes (with an interest in avoiding liability). By viewing
states primarily as respondents rather than also as treaty parties, investment tribunals
often ignore the relevance and persuasiveness for interpretation of those
parties� subsequent agreements and practice. The approach proposed here seeks
to recalibrate interpretive power between states and tribunals by increasing consideration
of such evidence.

Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States

International human rights law and international humanitarian law are traditionally two distinct branches of law, one dealing with the protection of persons from abusive power, the other with the conduct of parties to an armed conflict. Yet, developments in international and national jurisprudence and practice have led to the recognition that these two bodies of law not only share a common humanist ideal of dignity and integrity but overlap substantially in practice. The most frequent examples are situations of occupation or non-international armed conflicts where human rights law complements the protection provided by humanitarian law.This article provides an overview of the historical developments that led to the increasing overlap between human rights law and humanitarian law. It then seeks to analyse the ways in which the interplay between human rights law and humanitarian law can work in practice. It argues that two main concepts inform their interaction: The first is complementarity between their norms in the sense that in most cases, especially for the protection of persons in the power of a party to the conflict, they mutually reinforce each other. The second is the principle of lex specialis in the cases of conflict between the norms.

The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict

Introduction Part I. Historical Evolution of Foreign Investment Protection Law: 1. Origins of international investment law 2. 'The dynamic of a politically oriented law': foreign investment protection in a changing political environment Part II. Contemporary Interaction: Foreign Investment, Imperialism and Environmental Protection: 3. Polarisation of positions 4. Hints at synergy Part III. Foreign Investment Law, Practices and Policy: Future Trends: 5. Transformation in international law: applying developments to foreign investment 6. Paths towards a reconceptualised international law on foreign investment 7. Conclusion: patterns of power in international investment law.

The Origins of International Investment Law: Empire, Environment and the Safeguarding of Capital

Investment treaties are some of the most controversial but least understood instruments of global economic governance. Public interest in international investment arbitration is growing and some developed and developing countries are beginning to revisit their investment treaty policies. The Political Economy of the Investment Treaty Regime synthesises and advances the growing literature on this subject by integrating legal, economic, and political perspectives. Based on an analysis of the substantive and procedural rights conferred by investment treaties, it asks four basic questions. What are the costs and benefits of investment treaties for investors, states, and other stakeholders? Why did developed and developing countries sign the treaties? Why should private arbitrators be allowed to review public regulations passed by states? And what is the relationship between the investment treaty regime and the broader regime complex that governs international investment? Through a concise, but comprehensive, analysis, this book fills in some of the many "blind spots" of academics from different disciplines, and is the first port of call for lawyers, investors, policy-makers, and stakeholders trying to make sense of these critical instruments governing investor-state relations.

The Political Economy of the Investment Treaty Regime

'Every international convention must be deemed tacitly to refer to general principles of international law for all questions which it does not itself resolve in express terms and in a different way.'

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/A7F69D6EF3F577F64D512BFC870C68C4/S0020589300068457a.pdf/div-class-title-the-principle-of-systemic-integration-and-article-31-3-c-of-the-vienna-convention-div.pdf

The principle of systemic integration and article 31(3)(c) of the vienna convention

1. Overview 2. Legal Basis of Investment Arbitrations 3. Parallel Proceedings 4. Nationality 5. Definition of Investment 6. Investors' Rights 7. Expropriation 8. Compensation APPENDICES NAFTA Chapter 11 ECT Investment Provisions Agreement on the ASEAN Investment Area UK Model BIT US 1994 and 2004 Model BITs Germany Model BIT Netherlands Model BIT Sri Lanka Model BIT France Model BIT Chapter II of the ICSID Convention World Bank Investment Guidelines

International Investment Arbitration: Substantive Principles

International Investment Arbitration

The huge rise in the settlement of investment disputes by treaty has provoked an underlying question of great practical and theoretical importance: the relationship between the substantive standards protected in such treaties and general international law. This paper argues that the relationship is symbiotic: custom informing the content of the treay right; and State practice under investment treaties contributing to the development of general international law. It is the structured process of treaty interpretation which determines when and how reference to general international law may be made. Practice in this field supports a broader modern phenomenon, in which ‘general principles of law common to civilized nations’ may be informed not only by common principles of domestic law, but also by general principles of international law itself.

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/S0020589308000225

Investment treaties and general international law

Also available as an e-book What legal principles apply when courts in different jurisdictions are simultaneously seised with the same dispute ? This question — of international lis pendens — has long been controversial. But it has taken on new and urgent importance in our age. Globalization has driven an unprecedented rise in forum shopping between national courts and a proliferation of new international tribunals. Problems of litispendence have spawned some of the most dramatic litigation of modern times — from anti-suit injunction battles in commercial disputes, to the appeals of prisoners on death row to international human rights tribunals. The way we respond to this challenge has profound theoretical implications for the interaction of legal systems in today’s pluralistic world. In this wide-ranging survey, McLachlan analyses the problems of parallel litigation — in private and public international law and international arbitration. He argues that we need to develop a more sophisticated set of rules of conflict of litigation, guided by a cosmopolitan conception of the rule of law.

Campbell McLachlan

Papers

The principle of systemic integration and article 31(3)(c) of the vienna convention

International Investment Arbitration: Substantive Principles

International Investment Arbitration

Investment treaties and general international law

Lis Pendens in International Litigation